National Environmental Management Air Quality Bill: hearings

Meeting report

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
3 February 2004
NATIONAL ENVIRONMENTAL MANAGEMENT AIR QUALITY BILL: HEARINGS

Chairperson: Ms G Mahlangu (ANC)

Documents handed out;
Department of Environmental Affairs and Tourism submission
National Association For Clean Air submission
Legal Resources Centre submission
Highveld East Community Monitoring Association submission
South Durban Community Environmental Alliance submission
Sasolburg Air Quality Monitoring Committee submission
Standing Committee on Environment Affairs Association of Law Societies
Business Unity of South Africa submission
Chamber of Mines Powerpoint Submission
Chamber of Mines Written Submission

Summary
The Department reported that it needed to update the current outdated legislation with more efficient and appropriate legislation. They had introduced a shift in the source-based emission paradigm to the new ambient air quality approach. The other presenters all complained of the lack of enforcement of current legislation and many questioned the capacity of local government to take on additional responsibilities. The Legal Resources Centre also questioned the constitutionality of granting too much discretionary authority to officials without proper guidelines.

After the lunch break, the Committee heard submissions from the Chamber of Mines, Standing Committee on Environmental Affairs of the Associated Law Societies of South Africa, and Business Unity of South Africa. All the parties agreed that they would not repeat the concerns expressed that morning with regards to the Local Authorities' capacity to implement the Bill, but highlighted other issues.

Minutes
Department of Environmental Affairs And Tourism submission
Mr P.Lukey, Chief Director of Regulatory Services, outlined the shift of the current source-based emissions approach to the intended ambient air quality paradigm. The current legislation was outdated, was unable to deal with modern pollutants, and did not establish effective minimum emission standards. It was not participatory, transparent or conducive to fair administrative practices. The new Bill sought to define healthy air quality by setting standards and fulfill the constitutional imperative of devolving enforcement authority to local government

Discussion
Mr J Le Roux (DA) asked whether the Koega development would be adversely affected by the introduction of this legislation.

Mr C Olver, Department Director-General, said the Bill was essential to the Koega development but ensured the Committee that the management board had demonstrated great concern for a healthy environment.

Mr Le Roux said this Bill placed much emphasis on the role of local government and asked what measures would be taken to ensure the requisite capacity existed.

Mr Olver said the role of local government in this Bill was a constitutional imperative. The Department had carefully negotiated the respective roles of local and provincial government and only those municipalities with adequate capacity would be affected by the Bill. Municipalities who could not manage the additional responsibility could pass these functions to the Provincial Government. This legislation would impact most heavily on the main industrial areas of well-established municipalities. Air quality issues would not be resolved overnight but would require perseverance.

Mr Lukey said the poor had few options regardoing the types of fuel they used. Healthier, cheaper alternatives had to be made available to these communities.

Ms G Mahlangu (ANC) said she would have liked to hear from local government about their perceived capacity to deal with the requirements of this Bill.

Legal Resources Council (LRC)
Ms A Andrews said the Bill was unconstitutional because it gave state officials too much discretionary authority that could affect the constitutional rights of citizens without sufficient legislative guidance. She referred to the precedent set by the Constitutional Court in 'Dawood and Another v Minister of Home Affairs and Another' and 'Shalabi and Another v Minister of Home Affairs and Another 2000 (3)'.

Discussion
Mr Olver said care of the environment was a shared function of various spheres of government. Minimum national standards would be set but the Bill made provisions for municipalities to draft stricter regulations if they chose. He cautioned municipalities to avoid forcing industries to rival municipalities with less restrictive air quality policies.

Mr S Peek, Director of Ground Work, said there seemed to be an unproven assumption by the Department that the best available environmental technology would be used.

Mr Lukey said that by setting stricter requirements, industry would be forced to explore the best available technology. The Department did not want to dictate to industry as this might stifle innovation.

Mr Olver cautioned that 'best available technology' was a fashionable phrase among scholars. The Department should simply set the required standards and leave it to industry to choose how to meet the standards.

Mr Peek criticised the focus on ambient air. The monitoring system was expensive, time-consuming and required data that was currently not available. As the state currently had the authority to review emission standards but had not done so, he questioned whether new review mechanisms would make any difference.

Mr J Arendse (ANC) could not understand what the Legal Resources Centre considered unconstitutional.

Ms Andrews responded that in the 'Dawood and Another v Minister of Home Affairs and Another: Shalabi and Another v Minister of Home Affairs and Another 2000 (3)' case, the Constitutional Court had determined that a statutory provision which did not provide adequate guidance on the application of discretionary authority but which could affect citizens' constitutional rights, was unconstitutional. This Bill ran the risk of falling foul of this judgement.

Mr Arendse said he understood that the state could only intervene when a law had been transgressed, and he failed to see what the LRC wanted. He said this Bill alone could not protect the constitutional right to clean healthy air. There were other departments and legislation that, together with this Bill, would form a framework of legislation to protect this constitutional right.

Mr Olver said it appeared the LRC believed the focus on ambient air standards was flawed and the preferred an emissions-based criterion. The problem with emissions-based regulations was that, as the number of companies in an area increased, the total pollutant emission also increased, even if companies adhered to the emission quotas. Long-term climatic and environmental changes also affected the impact of emissions on human health. The only way to ensure healthy living conditions was to monitor and regulate the overall air quality. This would allow government to constantly review and adjust standards to ensure the air remained healthy.

Ms Andrews said the LRC believed the focus on ambient air quality was insufficient. Too much discretionary authority was given to state officials and there was a lack of clear standards to guide officials.

Mr Olver said this Bill did not give much discretion to enforcement officials and referred to clauses 8, 9 and 14. The Bill did not list the required air quality standards but it did contain the procedure and process required to establish such standards. The setting of standards required a scientific approach and pollutants had to be considered individually.

Ms Andrews asked why the Bill's stated object was merely to 'improve' and not to 'ensure' air quality for the health of citizens as stated in the Constitution.

Ms Mahlangu said they could not dedicate more time to debating this submission, and referred the issue to the state law advisors.

South Durban Community Environmental Alliance
Mr D D'sa, Chairperson of the South Durban Community Environmental Alliance, presented a well documented list of environmental and health problems created by air pollution. They urged more stringent enforcement of the air quality standards and stricter sanctions against transgressors. They insisted that outdated pipelines and other equipment be replaced with more efficient systems. The Alliance complained that provincial and national departments were ineffective and failed to protect the community's interests.

Discussion
Mr Lukey said the presentation showed clearly how current legislation had failed many communities, especially the Durban South community. The current legislation failed precisely because of the emissions-based approach.

Mr D'sa said the Bill left too much to the discretion of various parties and did not contain sufficient definitive requirements.

Mr Peek said some local governments might be able to perform the policing function required by this legislation. However, in Durban South which had the third biggest budget in South Africa, the municipality often claimed it was constrained by insufficient funds. He requested that the Bill include the process to be followed by municipalities to cede the policing and monitoring functions to the provincial government.

Mr Lukey said the Bill provided for the full force of all three tiers of government to act on Priority Areas listed in the Bill.

Ms Andrews agreed but questioned whether local governments would appreciate or allow such intervention.

Highveld East Community Monitoring Association
Ms O Nkosi said the Bill had to capacitate government to enforce accountability amongst polluting industries. The presentation focused on hazards created by SASOL in Secunda and the health effects on the nearby eMbalenhle community. She encouraged the creation of partnerships between government and communities, and urged greater transparency with regard to air quality standards.

Discussion
Mr Olver had no comment as he said the Bill fully covered the issues raised in the presentation.

Contact Trust
Contract Trust was hosting a summit of various role players to discuss nuclear energy, and their representative invited all Members of Parliament to RSVP if they were attending.

Ms Mahlangu said it might be too late, but she encouraged Contact Trust to invite the Cuban embassy to address the summit on their experiences of treating victims of the Chernobyl incident in Havana.

National Association for Clean Air
Mr G Scott supported the Bill, especially public participation and the devolution of power to municipalities. He was concerned that municipalities that should pool their resources to ensure adequate capacity.

Discussion
Mr Arendse said the matter of whether local governments would be able to deal with the added responsibilities, had been raised in most of the presentations and he asked the Department to apply its mind to this matter. He advised the Department to consider the successes of the Department of Water Affairs and Forestry, and perhaps emulate their approach to working with local authorities.

Mr Olver said the Department was simply giving affect to the constitutional determination that air quality fell under ambit of local government. The Department had however employed its considerable experience in crafting the role of local government in this matter. The Department had recently been involved in the Durban South matter, where it seemed that there was no co-operation between the various state departments and government offices. With the help of the Durban South Community, they had formulated a multi-point plan to build and expand capacity among various role players. The Department was lagging far behind the Department of Water Affairs and Forestry and much work had to be done before they could achieve comparable results.

Mr Scott recommended that the municipalities be encouraged to pool their resources to decrease duplication and ensure optimum utilisation of human and other resources.

Ms Mahlangu said in her experience, many municipalities were still struggling to provide basic services and hoped they would acknowledge if they were being overburdened. Municipalities taht could not cope should cede these responsibilities to provincial authorities. Even in areas that fell under one municipality and were benefiting from the same budget, predominantly black communities were still receiving inferior services to white residential areas. National and Provincial government should not hesitate to inform struggling municipalities to cede these new air quality regulating responsibilities if they could not do them justice. She passionately reiterated that racial differentiation was utterly unacceptable at this stage in SA's democracy.

Ms C Ramotsamai (ANC) agreed and added that it appeared from the presentations that the Bill needed to be tightened up to ensure industry did not continue business as usual. A stringent enforcement regime had to be affected to ensure that people's rights were protected.

Prof L Mbadi (ANC) said in the deep rural areas where he hails from, people still enjoyed fresh clean air but he would assist other communities without delay. He expressed interest in hearing the industry's response to the concerns raised and hoped that challenges to air quality could be overcome.

Mr Arendse again questioned whether municipalities had sufficient capacity to deal with this legislation.

A Committee member said she lived in Soweto during her youth and could still remember how motor vehicle drivers had found it impossible to navigate through the thick smog caused by the early morning wood fires. She also referred to an area she often visited where a factory spewed out white ash that resulted in debilitating ailments. The local community could not grow food to sustain themselves as a result of this ash, and had been complaining for years to no avail. Conditions were so poor that she fell ill after visiting the area for just one day. The Committee should endeavor to visit such areas and ensure conditions were remedied.

Sasolburg Air Quality Monitoring Committee
Ms C Ntaopane spoke of the dilemma of weighing up the need to create employment through industrial development, against the negative health and environmental affects of such developments. She hoped the Bill would navigate between these poles and deliver the nation to sustainable development. She also emphasised the need for civil society to remain actively engaged in maintaining healthy living conditions.

Discussion
Mr Olver said the Department had to contend with ongoing constitutionality challenges to current air pollution laws. The Department had been pleading for a long time for an adequate legal framework and the law had to be properly enforced. He reiterated that constitutionally, when a municipality was unable to fulfill an executive function, the Provincial or National government were mandated to take over that function. The executive obligation first had to defined as intended in this Bill before the above could take effect.

Ms Andrews urged the Committee to reflect on the successes of European nations who had focussed on the sources of pollution and used the ambient air quality to refine air quality management.

Mr Lukey said matters of implementation should not be confused with legislation. The approach Ms Andrews endorsed of targeting specific industries could be included in the Department's implementation strategy.

Ms Mahlangu concluded by acknowledging the hard work of local government. They did not wish to overburden municipalities with complex enforcement responsibilities.

Standing Committee on Environment Affairs of the Associated Law Societies of SA
After the lunch break, Ms Winstanley cautioned the Committee against creating a framework and not being able to implement it. The Constitution provides that "air pollution" should be dealt with by local government, but the Bill accords this to all spheres of government. The Bill placed an obligation on the Minister to set norms and standards but did not say when he or she should do so. They were extremely concerned about the transitional periods. Registration of change status had to be completed by the National Air Quality Officer within 90 days but the Bill did not make provision for the event that the Air Quality Officer did not comply. Finally, they did not believe that it was appropriate to grant exemptions as mentioned in Clause 59.

Discussion
Mr Lukey asked whether the current legislation prevented local authorities from passing their own bylaws on a particular aspect.

Ms Winstanley responded that it did not but that they should avoid duplication of a Bill.

Mr Lukey advised that they thought very carefully about writing the law. They did not want to be challenged by the Local Authorities their power was not diminished at all. They still had the power to declare a priority area.

Ms Winstanley responded that local authorities did not have the power to declare priority areas as yet and creating bylaws would only create more legislation. They should include local authorities in the consultation process. National Government needed to talk to local government.

Mr Lukey held that, in terms of the Constitution, they were obliged to talk to local authorities.

Ms Winstanley asked why provinces were allowed to consult with each other and national government, but not local government?

The Chairperson interrupted Ms Winstanley and adjourned the other points for discussion for the following day.

Ms Winstanley did not indicate whether they were in favour of the Bill.

Business Unity South Africa
Ms Carol Dixon welcomed the Bill and emphasised that business needed to operate in an unambiguous manner. Clear national standards had to be set in order to advise provincial and local authorities to make strict standards. The Bill failed around the transitional periods and only certain areas had been left to the discretion of the Minister or the MEC. For example, whether the Air Quality Advisory Committee would be established was left to the Minister. They considered the Advisory Committee to be central as it established co-operative governance between different levels of government. Also, there was no proper mechanism for the Airshed Manager to ensure that there was dialogue between the various levels of government and no substantive provisions for an appeal process. Time frames needed to be set to create certainty. Renewal of licenses could only take place once and they felt this was restrictive. The Bill lacked provisions for incentives and the reference to Recognition Programmes was not sufficient.

Discussion
Mr Le Roux (DA) advised that under the 1965 Act, local authorities were not sure under what law to convict, and businessed did not know what was expected of them. Having heard the submissions, he was not sure if those practical problems were dealt with by the Bill.

Mr Lukey said the environmental process had been in place for five years. Legislation was in place to enhance that process and there were a number of mechanisms in place. They were working on operational processes to assist industries to provide the basis for licenses. The reason why provisional licenses were only issued once was that, if an environmental process had been undertaken, an industry was licensed to proceed with certain emission levels. If they wished to vary this, they would once again have to do an environmental impact assessment.

Mr Olver felt the Bill met all the requirements. As regards incentives, this was largely a financial issue. It was inappropriate for this Bill to encroach on financial issues to be decided by the Department of Finance.

Chamber of Mines submission
Mr Andrew Parsons welcomed the Bill. As regards the decision-making process, they felt that all amendments should be subject to consultations - they were concerned about the definition of 'non-substantive'. Applications were granted if consistent with a the list in the Bill, but there was no similar list of requirements to refuse an application. The word "promptly" should be replaced with a specific time period. With regard to review and variations, reasons for a decision should be stipulated in detail and in writing. Proper scientific process should be applied by National government and provinces when they set norms and standards. They were not sure why the mining industry was required to give notice of closure of as mine. In the Mineral and Resources Development Act, the Minister of Minerals and Energy already had to inform the Department of Environment and Tourism of a closure of a mine. Transitional periods were also not entirely clear.

Discussion
The Chairperson responded that the 1994 government had been faced with numerous 'ownerless' mines. The owners could not be traced so that the mines could be rehabilitated. The Bill legislated that in order for a mine to be closed, they had to be notified.

Mr Olver responded that the reality was that they were not informed of the mine closures and the problem of mine dust has been going on for many years. Section 30 was the minimum necessary.

Mr Lukey answered that they viewed 'non-substantive issues' to be, for instance, spelling errors. Substantive meant the substance of a clause was changed. He was not sure what Mr Parson meant by "proper scientific process". Standards set by national and provincial Government would determine whether pollution was significant.

Mr Moss (ANC) held that the wording of section was too mild and that the Committee should consider asbestos mines where people were still dying. The provision should stipulate that before a company considered mining, they should have a plan on how to rehabilitate the mine after closure. It was an insult that the Chamber of Mines suggested that section 30 should be deleted. He did not believe that they were serious about the Bill and were not serious about public welfare.

Mr Parsons refuted this and said their only aim was to ensure that legislation was not replicated. Current legislation was tighter than it used to be and required mining companies to make provision financially for rehabilitation after closure. If the owner were to disappear or become insolvent, there would be funds available to rehabilitate the mine.

The Chairperson concluded that it was advisable to keep section 30.

The hearing was adjourned.